12 JURIDICA INTERNATIONAL 27/2018
Judge, Vice-President of the Second Section
of the European Court of Human Rights
Visiting Professor, University of Tartu
(Just) Give Me
a Reason …*1
The incentive for this paper was a recent judgment of the European Court of Human Rights (ECtHR, Stras-
bourg Court): Baydar v. the Netherlands.*2 In this judgment, the Strasbourg Court addressed at length the
interaction between its case law pertaining to, ﬁ rstly, the requirement to give reasons for a refusal to refer
a question to the Court of Justice of the European Union (CJEU, Luxembourg Court) and, secondly, the
ECtHR’s acceptance that a superior court may dismiss an appeal on the basis of summary reasoning.
This issue has bothered me for some time, in particular in relation to the legal system of my country of
origin – Estonia. In Estonia, on the one hand, questions for a possible preliminary reference occasionally
arise in complicated legal disputes before all levels of domestic courts, and, on the other hand, the Supreme
Court can refuse leave to appeal (including in cases where the lower courts have decided not to refer a ques-
tion to the Luxembourg Court), without real reasoning, using only one very laconic sentence. So far, the
ECtHR has not yet dealt with the Estonian circumstances.*3 This paper will, of course, avoid predictions of
what the possible outcome of a respective case involving Estonia would be. However, the topic deserves,
to my mind, general reﬂ ection, because it is not rare for a judicial system to face the dilemma of whether
to prefer thorough expression of judicial reasoning always or to sacriﬁ ce the reasoning in order to have an
e ective leave-to-appeal system, which would allow the jurisdiction to concentrate on important matters
with precedential value. In the present context, one should also not neglect the aspect of interplay between
European Union (EU) law and the European Convention on Human Rights (ECHR), as well as the role of
national courts ﬁ nding their way in complex legal surroundings. Above all, it is about the parties of domes-
tic litigation and their representatives who desire an answer as to why their national court has decided not
to seek help from the CJEU and who also deserve their application being given due consideration within
‘Just Give Me a Reason’ is a song recorded by American singer and songwriter Pink. Judge La ranque has previously too been
inspired in the headings of her articles by famous song titles. See, for example, Julia La ranque. Can’t get just satisfaction. –
Anja Seibert-Fohr, Mark Villiger (eds). Judgments of the European Court of Human Rights – E ects and Implementation
(Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law). Nomos ,
pp. –. – DOI: https://doi.org/./_. The current paper reﬂ ects only personal opinions of the
Baydar v. the Netherlands, No. /, .. (not yet ﬁ nal).
It is not excluded that the ECtHR will need to deal with the issue; see the piece ‘Tallinn water provider heads to human rights
court in tari dispute’, by ERR, Estonia, ... Available at https://news.err.ee//tallinn-water-provider-heads-
to-human-rights-court-in-tari -dispute (most recently accessed on ..).
(Just) Give Me a Reason …
JURIDICA INTERNATIONAL 27/2018
1. Judicial reasoning and the interplay
between European Union law and the European
Convention on Human Rights
Judicial reasoning refers both to the process by which a judge reaches a conclusion as to the appropriate
result in a case and to the written explanation of that process in a published judgment. This paper uses and
explores the latter of the meanings of judicial reasoning and concentrates on the issue of giving reasons in
1.1. The overall importance of giving judicial reasons
Reason to give reasons: The purpose of giving reasons
For the judiciary, the modern state has always accepted that its judgments have to be underpinned by a
proper and full justiﬁ cation: this principle is enshrined in most constitutions and is enforced by the highest
It goes without saying that it is important to give reasons for a judicial decision. Thanks to a presenta-
tion of reasoning, it is possible to understand why the judicial decision was made one way or another and,
if available, seek appeal.*5 Good reasoning helps also for acceptance of the judgment by the parties and by
the society as a whole. According to the Strasbourg Court’s case law, ‘[t]he accused’s understanding of his
conviction stems primarily from the reasons given in judicial decisions, [which is why] in such cases, the
national courts must indicate with su cient clarity the grounds on which they base their decisions. […]
Reasoned decisions also serve the purpose of demonstrating to the parties that they have been truly heard,
thereby contributing to a more willing acceptance of the decision on their part’.*6
The principle of giving judicial reasons is also linked to the proper administration of justice:*7 it obliges
judges to base their reasoning on objective arguments, preserves the rights of the defence, and prevents
arbitrariness by allowing possible bias on the part of the judge to be discerned.*8
Furthermore, the reasons are an important aid for implementing a judgment, since a fair trial has been
fully respected only if the judgment is enforceable and will indeed be implemented.
The duty to give reasons in the Strasbourg
and Luxembourg courts and in their case law
As far as the ECtHR is concerned, Article 45 ECHR states that reasons shall be given for judgments as
well as for decisions declaring applications admissible or inadmissible. The Rules of the Court specify this
requirement in detail.*9
In the EU, Article 36 of Protocol No. 3 to the Treaty on the Functioning of the European Union (TFEU),
on the Statute of the Court of Justice of the European Union, provides that the CJEU’s judgments shall
state the reasons on which they are based. This is supported by the Rules of Procedure of the Luxembourg
See Ingrid Opdebeek, Stéphane De Somer. The duty to give reasons in the European legal area: A mechanism for transparent
and accountable administrative decision-making? A comparison of Belgian, Dutch, French and EU administrative law. –
Rocznik Administracji Publicznej (), pp. –, on p. .
The reasons given must be such as to enable the parties to make e ective use of any existing right of appeal (ECtHR, Hirvi-
saari v. Finland, No. /, ..). National courts should indicate with su cient clarity the grounds on which they
base their decision, so as to allow a litigant usefully to exercise any available right of appeal (Hadjianastassiou v. Greece,
No. /, ..).
Taxquet v. Belgium, No. /, ...
Papon v. France (dec.), No. /, ...
Cerovšek and Božičnik v. Slovenia, Nos / and /, ... As the Strasbourg Court has often noted, the
rule of law and the avoidance of arbitrary power are principles underlying the ECHR. In the judicial sphere, those principles
serve to foster public conﬁ dence in an objective and transparent justice system, one of the foundations of a democratic society.
See, among many other authorities, mutatis mutandis, Roche v. the United Kingdom [GC], No. /, ECHR -X,
See Rules of the ECtHR: Rule ², ¹, .